Typologies of crime abound and evolve with societal structures and technological advancements. One category of crime, which is often misunderstood is organized crime. Most often than not, it is confounded with white collar crime. While motivation for both is to seek profits, white collar crime preys on legitimate businesses and opportunism as compared to organized crime that operates through illegal businesses and uses violence. Given these confusions, the United Nations Office on Drugs and Crime (UNODC) has used a working definition of organized crime, which states:
“Organized crime is a continuing criminal enterprise that rationally works to profit from illicit activities that are often in great public demand. Its continuing existence is maintained through corruption of public officials and the use of intimidation, threats or force to protect its operations.”
In the context of Pakistan, policing organized crime is emerging as a new challenging area that seeks attention from policy makers and powers that be. In order to examine the policing challenges, it is important to first briefly and thematically examine how the international and national laws define organized crime that must be policed to protect life, property, reputation of people and the image of a country of Pakistan’s scale and geography; the overview of examination is stated accordingly:
With the ascendancy of international human rights law in the Post-Cold War era, globalization and international freedoms reached new levels. This multilateral legal framework of enabling freedoms also provided opportunities for organized crime syndicates to grow. In response, since 2000, there has been steady introduction of international legal instruments to tackle and police organized crime internationally. One of the chief legal instruments has been the United Nations Convention on Transnational Organized Crime (UNCTOC) that was passed by the United Nations General Assembly in 2000. Pakistan, like many other nations, cautiously watched its growth and then eventually in 2010, ratified it and obligated upon itself the implementation of the UNCTOC in 2003. A eye bird’s view of the UNCTOC shows that it does not define ‘organized crime’; instead it defines ‘organized criminal group’. By choosing not to define the organized crime, the UNCTOC has provided the much needed space for sovereign nations to use their national definitions of the crime. Broadly, the UNCTOC has required states:
- to criminalize participation in an organized criminal group (article 5);
- to criminalize laundering of proceeds of crime (article 6);
- to introduce measures to combat money-laundering (article 7);
- to criminalize corruption in all its forms (articles 8 and 9);
- to take measures to introduce criminal liability of legal persons (like companies, trusts, firms and other forms of legal entities) (article 10);
- to take measures to introduce effective, proportionate, dissuasive criminal or non-criminal sanctions against legal persons (article 10);
- to prosecute, adjudicate and impose sanctions related to offences introduced in UNCTOC (article 11);
- to introduce confiscation and seizure of property linked to organized crimes of money laundering and corruption (article 12);
- to enter into international cooperation arrangements for confiscation of properties related to money laundering and corruption (article 13);
- to introduce universal jurisdiction for offences related to corruption, money laundering and proceeds of crime (article 15);
- to opt in or provide for legal basis of extradition of offenders related to the UNCTOC (article 16);
- to cooperate for transfer of offenders related to offences of UNCTOC by entering into bilateral or multilateral agreements (article 17);
- to introduce Mutual Legal Assistance (MLA) regime for taking evidence, effective service of judicial documents, executing searches, seizures and freezing, examining objects and sites and other steps for affecting legal processes (article 18);
- to consider entering into agreements for joint investigations (article 19);
- to use special investigative techniques (controlled delivery, electronic surveillance and undercover operations) in other jurisdictions (article 20);
- to transfer criminal proceedings (article 21), to establish criminal records (article 22), to criminalize obstruction of justice (article 23) and protection of witnesses (article 24);
- to enhance cooperation of law enforcement cooperation (articles 26, 27 and 28);
- to settle inter-state dispute by negotiations, arbitration and in case of failure of arbitration, reference to the International Court of Justice (ICJ) (article 35);
Pakistan has steadily implemented most parts of the UNCTOC. It has already criminalized corruption at both federal and provincial levels through the National Accountability Bureau Ordinance, 1999 and the Prevention of Corruption Act, 1947. Its money laundering law (the Anti-Money Laundering Act, 2010 along with counter-terrorism financing related money-laundering as per the Anti-Terrorism Act, 1997) is much elaborated and has a wider net. It already has its Extradition Act, 1972 that provides procedural safeguards and can by updated to include money-laundering as an extraditable offence. Insofar as the Mutual Legal Assistance is concerned, it has the latest Mutual Legal Assistance (Criminal) Act, 2020. Its legislation on international cooperation is specifically covered in the National Accountability Bureau Ordinance and the Anti-Money Laundering Act. The legislative cover is supported by implementing agencies in form of the Federal Investigation Agency (FIA), the National Accountability Bureau (NAB), the Provincial Anti-Corruption Establishments and the Counter-Terrorism Departments of the Provincial Police Organizations. In addition, international cooperation to the extent of criminal matters is also carried out with International Criminal Police Organization (INTERPOL) through National Central Bureau of the FIA.
As discussed above, at the national level, Pakistan has many laws that are in conformity with the UNCTOC and even predate the international legal obligations that come with signing of international instruments. These laws derive their strength from constitutional foundations contained in articles 142 and 143 that make criminal law, procedure and evidence concurrent subjects and involve both the federal and provincial governments to fight and police organized crime. Though Pakistan has not signed protocols annexed to the UNCTOC related to trafficking in persons of women and children and smuggling of migrants, it has introduced national legislation in form of the Prevention of Trafficking in Persons Act, 2018 and the Prevention of Smuggling of Migrants Act, 2018. These legislative steps by Pakistan show its commitment to align itself with the international community’s priority areas.
Having stated the national and international framework applicable to deal with organized crime in Pakistan, it would be apposite to briefly outline challenges of policing the organized crime, which are:
First, policing organized crime has yet to be mainstreamed in Pakistan. While Pakistan has been doing fairly well in criminalizing organized crime, it has to do a lot insofar as the actual implementation is concerned. Its police, prosecution, judiciary and public safety administration have to put their acts together to bring organized crime to the centre of all their efforts. The asymmetrical relationship of provincial judiciary and prosecution departments with federal investigative agencies must be squared in a manner that all move in one direction instead of working at cross-purpose.
Secondly, the technological component of policing organized crime must be legally covered so that police organizations can use Information Technology (IT) based information and evidence in effective and efficient manner. Lack of legal cover of IT based Policing (ITP) provides good grounds of legal defence for organized criminals. This compatibility of law and technology must be properly attended to.
Thirdly, political diplomacy has to be sensitized about the latest trend of judicial diplomacy that places police/prosecutors as liaison officers in diplomatic missions. This placement helps in better international cooperation.
Lastly, international cooperation and organized crime is not at the centre of capacity building strategies of police, prosecution and judiciary. This needs to be prioritized.